Seibold v. City of Muskogee
| Decision Date | 09 February 1932 |
| Docket Number | Case Number: 21460 |
| Citation | 1932 OK 110,155 Okla. 81,8 P.2d 35 |
| Parties | SEIBOLD et al. v. CITY OF MUSKOGEE et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Contents of Case-Made--Statute.
Under the provisions of section 784, C. O. S. 1921, a party desiring to have a judgment of the district court reversed by the Supreme Court may make a case, containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the Supreme Court.
2. Same--Necessary Recital in Case-Made as to Contents.
Where a case-made does not contain a positive averment by way of a recital that it contains all of the proceedings and evidence or other matters in the action as may be necessary to present the error complained of to the Supreme Court, the same is insufficient and without force.
3. Same--Appeal not Necessarily Dismissed Because Case-Made Does not Show It Contains All of Evidence.
The fact that a case-made does not show that it contains all of the evidence is not necessarily ground for the dismissal of an appeal, where a consideration of all of the evidence is not necessary to a determination of the questions raised upon the appeal.
4. Same--Case-Made not Required to Include Entire Record.
It is not necessary that the entire record be included in the case-made, but so much thereof as is required by section 784, C. O. S. 1921, must be included therein, and there must be an averment therein of the inclusion thereof.
5. Same -- Withdrawal of Case-Made for Correction--Scope of Correction.
It is the policy of this court on application to permit a case-made to be withdrawn for the purpose of correction pursuant to the provisions of section 786, C. O. S. 1921. The correction thereof may be made to include therein not only any matter which is of record in the court from which the appeal is taken, touching the cause appealed, but any evidence heard on the trial of the cause and any statement, certificate, motion, or other matter omitted from the case-made or insufficiently stated therein. The authority for correction includes matters which are of record in the court, which are required to be of record therein, and matters which are not of record therein which are not required to be of record therein.
6. Same--Time for Withdrawal of Case-Made.
A withdrawal of a case-made for correction may be permitted at any time prior to the decision of the cause, whether before or after the expiration of the time for the filing of an appeal.
7. Same--Revivor of Action in Name of Successor to City Clerk Held Unnecessary.
Under the provisions of chapter 88, Session Laws 1923, it is not necessary to revive an action instituted against a city clerk who was sued as such and who has been removed from office and a successor appointed.
8. Same--Motion to Dismiss Appeal Held in Abeyance Pending Correction of Case-Made Pursuant to Order Authorizing Withdrawal.
Where an application is made to correct a case-made, pending a motion to dismiss, and an order is made authorizing the withdrawal of the case-made for correction, the final order on the motion to dismiss will not be made pending the correction of the case-made.
Appeal from District Court, Muskogee County; E. A. Summers, Judge.
Action by Geo. W. Seibold et al. against the City of Muskogee et al. Judgment for defendants, and plaintiffs appeal. Permission granted to withdraw case-made for correction, and motion to dismiss appeal overruled.
S.E. Gidney, Homer Baughman, George K. Powell, and Benjamin B. Wheeler, for plaintiffs in error.
Stone, Moon & Stewart and W. B. Moore, for defendants in error.
¶1 This is an appeal from a judgment of the district court of Muskogee county in favor of the defendants in error, the defendants in that court, against the plaintiffs in error, the plaintiffs in that court. Hereinafter the parties will be referred to as plaintiffs and defendants.
¶2 The defendants have filed in this court a motion to dismiss the appeal. The first reason assigned by them for the dismissal thereof is:
¶3 An examination of the instrument filed herein as a case-made discloses that there is no averment by way of a recital therein in the form usually included in case-mades. For the want of such an averment, many appeals have been dismissed by this court. See Alexander v. First Nat. Bank of Duncan, 136 Okla. 251, 277 P. 667, wherein it was held:
"Where a case-made does not contain a positive averment by way of a recital that it contains all of the proceedings and evidence or other matters in the action as may be necessary to present the error complained of to the Supreme Court, the same is insufficient and without force."
¶4 Section 784, C. O. S. 1921, provides that a party desiring to have a judgment of the district court reversed by the Supreme Court "may make a case, containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the Supreme Court."
¶5 There is no requirement therein that all of the proceedings or all of the evidence or all of the other matters in the action be included. In Pahlka v. Chicago, R. I. & P. Ry. Co., 62 Okla. 223, 161 P. 544, this court held:
"The fact that a case-made does not show that it contains all of the evidence is not necessarily ground for the dismissal of an appeal, where a consideration of all of the evidence is not necessary to a determination of the questions raised upon the appeal."
¶6 In St. Louis & S. F. R. Co. v. Taliaferro, 58 Okla. 585, 160 P. 610, this court held:
¶7 There is useless waste when there is included in a case-made anything not necessary to present to this court the errors complained of,--waste of money of litigants in paying therefor and waste of the time of this court in considering the same. Notwithstanding the language of the statute and the decisions of this court, there is a custom among the lawyers of this state to include in the case-made all of the pleadings, proceedings, evidence, and other matters in the action without regard to whether or not they are necessary to present the errors complained of to this court. We know of no reason why a summons should be shown in a case-made where an appearance has been made and no question of the jurisdiction of the court over the person of the defendant is presented. Possibly the custom has arisen from a misapprehension of the meaning of the decisions of this court with reference to the requirements of section 784, supra.
¶8 In Board of Commissioners v. Wright, 8 Okla. 190, 57 P. 203, the territorial Supreme Court held that where the questions presented for review depend upon a consideration of the evidence, the case-made must contain all of the evidence and that this must affirmatively appear in the case-made itself, a mere statement in the certificate of the trial court that it contains all of the evidence not being sufficient. The decision followed decisions of the Supreme Court of Kansas to the same effect. The reason stated for the rule is that, where the record fails to show that it includes all of the evidence upon which the finding and judgment of the trial court was based, the Supreme Court is unable to state that the findings and judgment are contrary to the evidence. The rule was stated by the Supreme Court of Kansas in Eddy v. Weaver, 37 Kan. 540, 15 P. 492, as follows:
"Usually, when a party making a case for the Supreme Court desires that it shall be shown that the case contains all the evidence, the case itself, as served upon the adverse party, should contain a statement to that effect, so as to give the adverse party an opportunity to suggest amendments if he think the statement untrue, either by striking out the statement, or by inserting such other evidence as he may believe has been omitted, and thereby make the case speak the truth."
¶9 In Sawyer & Austin Lbr. Co. v. Champlain Lbr. Co., 16 Okla. 90, 84 P. 1093, the case-made purported to contain the evidence, but contained no recital or other statement that it contained all of the evidence introduced in the trial of the cause. There was a certificate of counsel that the case-made contained all of the evidence and a certificate of the stenographer that his transcript contained all of the evidence, but the court held that neither of those certificates was authorized or recognized, and said:
"The case itself must contain the positive averment by way of recital that it does contain all the evidence submitted or introduced on the trial of the cause, and in the absence of such recital, this court will not review any question depending upon the facts for its determination."
¶10 A number of cases were cited in support of the rule stated.
¶11 The rule stated by the territorial Supreme Court was stated by this court in Tootle, Wheeler & Motter Merc. Co. v. Floyd, 28 Okla. 308, 114 P. 259. It was therein contended that the evidence was insufficient to support the judgment, and this court said:
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